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A Local Ethics Law Without Local Ethics Enforcement

Monday, November 21st, 2011

Robert Wechsler

Here's the situation. There is a state ethics program that applies
to local governments, and an ethics issue relating to a local law
arises. There is no local ethics commission to enforce the local
law, so what happens?

This is the situation in Cincinnati. The issue involves a charter
provision that prohibits city funds from being disbursed for the
purpose of a political campaign. This is usually an ethics matter
(misuse of city property), but since there is no ethics commission
in Cincinnati, three things happened when a council member put
references on her website to her campaign (thereby making use of the
city's broadband service), according to an
article on Friday in the Cincinnati Enquirer.

One, a citizen group filed a suit against the council member in a
local court, and the court enjoined the council member from using
city equipment and time for political purposes.

Two, the city solicitor asked the council member to pay 13 cents to
the city for her use of the city's broadband service.

And three, the council member sued the city, after paying the
penalty, arguing that enforcement of the charter provision in this
case was an unconstitutional attempt to limit and burden her access
to the internet for legal purposes, and that the charter provision
is itself unconstitutional.

If someone had filed a complaint with an ethics commission regarding
this conduct, the violation would hopefully have been considered de minimis,
and the commission would have hopefully sent a warning letter about
use of government property for campaign purposes. If the council
member complained, the commission would have hopefully told her that
this is a common rule (although the Cincinnati language is odd) and in no way limits free speech, only who
pays for it. The cost to the city would be nothing, the courts would
not get involved, and what appears to be a war between this citizen
organization and the council member would hopefully have taken place
without cost to the public.

If a city is going to have an ethics law on its books, it should
have independent enforcement of the law, and not allow people to
ignore the state ethics program, file a suit, or get the city
attorney's office involved.